ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008495
A Social Care Worker
A Designated Health Care Provider
Patrick Troy IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007
Date of Adjudication Hearing: 23/02/2018
Workplace Relations Commission Adjudication Officer: Gerry Rooney
In accordance Part 14 Section 103(55M) of the Health Act, 2007, following the referral of the complaint to me by the Director General of the WRC, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complaint refers to the alleged treatment of the Complainant, and Social Care Worker when he raised concerns with regard to the care of a resident at one of the Respondent’s Designated centres. The Complainant maintains that as he raised a protected disclosure he was entitled to protection under Part 14 Section 103(55M) of the Health Act, 2007 he was subject to penalisation for raising his concerns.
Summary of Complainant’s Case:
The Complainant submitted that he commenced his employment as a Social Care Worker on 5th January 2015. He advised that as a mature student he had successfully completed a first class honours degree and had been awarded the Irish Association of Social Educators Student award.
The Complainant explained in detail the alleged difficulties he maintained he had experienced with regards concerns he raised in 2016 relating to a resident, and the alleged handling of these concerns by management, the person in charge (PIC), Clinical Nurse Managers, the Director of Nursing and Care, and some of his colleagues. He also outlined in detail the alleged experiences he has had regarding undue questioning and interference by management and others relating to his decision making when caring for residents which included allegations of fall of a resident in his care, allegations about his seating arrangement when on a bus with residents, allegations regarding record keeping, allegations regarding comments made about how a resident would respond to him when showering, and where he had reported allegations of inappropriate contact by a resident. The Complainant also advised that he had participated in an investigation and that process had caused him concerns. The Complainant submitted that over this time he would have felt questioned by the PIC and where he would also have experienced bullying behaviour and harassment from named colleagues. The Complainant would also have raised his concerns with HIQA.
In providing his evidence the Complainant appeared genuinely concerned and somewhat distressed by what he had experienced. All of the above events were experiences that the Complainant alleged had occurred prior to making his protected disclosure on 23rd February 2017.
The concern raised by the Complainant on 23rd February 2017 and his complaint under Part 14 Section 103(55M) of the Health Act, 2007 referred to a disclosure relating to the end of life care of a resident and the alleged subsequent penalisation he experienced.
The Complainant submitted that as a consequence of his genuine concerns regarding the care of the aforementioned resident, and in particular the residents end-of-life care, that he raised his concerns in an email to the Director of Nursing and had also reported his concern to HIQA. However, he was unhappy with the response provided by the Designated Person. Following raising his concern on the 23rd February 2017 the Complainant went on sick leave. As he was concerned with the handling of his safeguarding concern he emailed the HR Officer on 9th March 2017 seeking clarification on how his concern was being managed. In subsequent communication to the HR Officer on 14th March 2017 the Complainant advised that his disclosures come within the remit of the Whistle-blower’s Protection Act (2014) and he requested a copy of the Respondent’s whistleblowing policy.
The Complainant submitted that he remained on sick leave, and when he was certified to be fit to return to work on 18th May 2017 the Respondent disallowed his return to work and instead required the Complainant to attend Occupational Health. The Complainant advised that this approach added to the stresses he was experiencing and placed him under major duress. Following a visit to Occupational Health he then attended a return to work meeting on 23rd June 2017. He indicated that as he was concerned about losing his illness benefit he attended the meeting. The Complainant maintained that he was required to discuss the safeguarding issues at that meeting, but he was not in a fit state to discuss his concerns. He felt he was being put under pressure at the meeting, and felt he was being penalised for raising his concerns. He submitted that he was also told at this meeting that he was to be moved to a new work centre when he returned to work. He requested that before he returned to work that he would be granted annual leave to participate in a holiday visit he had planned before returning to work. The Complainant maintained he initially had to cancel this planned leave to facilitate his return to work process.The Complainant also maintained that he sought a copy of the notes of the meeting that took place on 23rd June 2017, but these were never provided to him.
The Complainant submitted that a move to a new work location was a penalisation and he did not accept the contention by the Respondent that the changes were required for operational circumstances. The Complainant maintained that there was a need for the level of Social Care Workers in his current location, and he disagreed with the manning levels proposed by the Respondent for the designated centre. He maintained that the proposed move by the Respondent was penalisation.
The Complainant further maintained that he was threatened with disciplinary action if he did not return to work. He stated that his medical situation had also been discussed by colleagues and this was a violation of his human rights where he inferred a breach of confidentiality regarding his medical situation. This he contended was further penalisation that he alleged he experienced.
The Complainant also stated that during his sick leave he received a shortfall in this pay and was not advised that his pay was to be reduced. He had to seek advice on the matter and referred the issue to his Trade Union representative who advised him that he had been placed on the sick pay scheme. The Complainant maintained this change without notice caused him difficulty and had potential to impact on his credit rating. He maintained that the pay adjustments to his sick leave benefit were not properly managed by the Respondent and took some time to be rectified. He maintained this reduction on pay amounted to a further penalisation and where other employees would not have been treated similarly.
The Complainant also submitted that during his sick leave the requirement by the Respondent for him to attend a meeting at short notice meant he had to cancel his a NCT car test which meant he was at risk of driving his car illegally without a NCT, which added to the stressful situation he was experiencing. In addition, the Complainant advised that when he was on sick leave he would have been receiving calls from the PIC and this was a breach of his rights. The Complainant maintained that all these actions were further acts of penalisation as a consequence of raising his safeguarding concern and his protected disclosure
It was evident that the Complainant had been impacted by what he alleged he had experienced, and where the stress of the alleged occurrences had impacted on his own medical circumstances where he has a physical illness not associated with the safeguarding concerns. The Complainant maintained that prior to his appointment he would have declared his illness to the Respondent, describing it as post-traumatic stress disorder due to childhood clerical abuse. He therefore maintained the manner the Respondent dealt with him was also an act discrimination, further compounding the penalisation he was experiencing.
The Complainant believed the safeguarding concern had not been dealt with and he remained on sick leave at the time of the hearings.
Summary of Respondent’s Case:
The Respondent advised that it was a Designated Centre within the definition of the Health Act 2007 and in accordance with section 104 (55R) of the said Act it has a Whistleblowing Policy in place and takes its obligations under the Health Act very seriously. The Respondent advised that at the time of the alleged disclosure made by the Complainant it was participating in an investigation at the designated centre where the Complainant was assigned, and this investigation had been instigated under the Respondents safeguarding policy.
The Respondent advised that the residential services it provides at the Designated Centre have been regulated by HIQA since November 2013, and where the location the Complainant has worked in has been subject to 4 HIQA inspections. The Centre was registered by HIQA on 9th December 2016 following a registration and inspection process, and as such the Respondent maintained the centre was deemed by the regulator as being compliant with the regulations set out in the Health Act 2007.
The Respondent submitted that on 23rd February 2017 the Complainant raised concerns of a safeguarding nature with the Director of Nursing and Care. The Director of Nursing sent the concerns to the PIC, who in turn submitted them to the Designated Officer who was responsible for assessing allegations of abuse. The Respondent advised that the Complainant had also raised his safeguarding concerns directly with HIQA on 22nd February 2017.
The Respondent submitted that on 24th February 2017 the Director of Nursing had forwarded the concerns to the PIC, and on the same day the PIC reviewed the allegations and forwarded his views of the concern to the Designated Officer and the Director of Nursing. On the 26th February 2017 the Complainant called in sick, and following a subsequent receipt of a medical certificate from the Complainant’s GP the Respondent wrote to the Complainant advising on the availability of the employee assistance program. The Complainant remained absent on a certified medical issue related to his physical illness.
On the 27th February 2017 the Designated Officer advised that he would log the questions raised by the Complainant on the safeguarding database as a notification given the lack of clarity around the allegation to be screened. The Designated Officer also responded under the Whistleblowing/ Safeguarding Policy to the Complainant by email. The Respondent advised that the Complainant responded to the Designated Officer on 28th February 2017 stating his dissatisfaction with the Designated Officer’s response. On 2nd March the Director of Nursing wrote the Complainant advising she had attempted to contact the Complainant and offered to meet him to discuss his concerns.
The Respondent submitted that on 9th March 2017 the Complainant wrote to the HR Officer advising of his concerns regarding the handling by the Designated Officer and Director of Nursing of the reported allegations of abuse. The HR Officer responded on 13th March 2017 advising the Complainant that the Director of Nursing had been trying to make contact with the Complainant about the matter. On 14th March 2017 the Complainant responded to the HR Officer advising that his complaints come under the remit of the Whistleblowing/Protected Disclosures Policy and where he sought a copy of the policy.
The Respondent maintained that between 22nd March 2017 to the 14th May 2017 it proposed six dates to meet with the Complainant to discuss the issues he had raised. It advised that these dates were rescheduled by the Complainant on at least two occasions, and on other occasions the Complainant advised he was unable to meet. The Respondent advised that during this time, on 5 May 2017, the Complainant lodged a complaint to the WRC alleging penalisation under part 14 section 103 (50 5M) of the Health Act 2007. It received a copy of this complaint from the WRC on 1st June 2017. The Respondent further advised that on 30th May 2017 the Complainant attended occupational health and where the outcome of this assessment was that the Complainant was fit to return to work, and where it was stated that the Complainant should meet with his employer to discuss his concerns.
The first meeting between the Complainant and Respondent took place on 23rd June 2017. The HR Officer and Director of Nursing attended the meeting and the Respondent submitted that the Complainant did not wish to discuss the occupational health report, nor did he wish to discuss any of his safeguarding concerns on the basis these matters would be addressed by the WRC. At the meeting the Respondent advised the Complainant that when he returned to work he would be transferred to a new work location. The Respondent maintained that Complainant advised he wished to confirm this with his GP before returning to work, and he also and requested two weeks annual leave. This leave was granted with a return date of 10th July 2017 being agreed. The Respondent also advised that the Complainant confirmed his agreement to move the new work location on return from his leave.
On 30th June 2017 the Respondent submitted that the HR Officer wrote to the Complainant with minutes of the meeting held on 23rd June 2017 along with copies of the Respondents grievance procedure and its dignity at work policy, and the Respondent encouraged the Complainant to raise his concerns through these channels in order to have them addressed. The Respondent also advised that on 5th July 2017 the Complainant wrote to the WRC anticipating he would have further examples of penalisation following an FOI request. (Correspondence to the WRC on 9th July 2017 outlined in detail the Complainant’s concerns regarding the safeguarding issue and the alleged penalisation up to that point. The Complainant also notified the WRC that he was seeking immediate protections as afforded to him under the Health Act 2007, and the Protected Disclosures Act 2014, and that he asserted a move to a new Designated Centre amounted to further penalisation).
The Respondent advised that on 5th and 7th July 2017 the PIC attempted to contact Complainant regarding his rostering on his return to work. The Complainant did not return to work on 10th July 2017 as agreed, and on 20th July 2017 the PIC wrote to the Complainant referring to his absence and invited the Complainant to a meeting on 22nd July 2017. The Complainant was afforded the opportunity to be accompanied/represented at this meeting. The Respondent advised that between the 21st and 28th July 2017 there was correspondence between PIC and the Complainant where the Complainant queried the status of his employment and asserted his availability to return to his former place of work rather than the relocation he had agreed to on 23rd June 2017. Having confirmed the Complainant’s employment status, a meeting was arranged for 27th July 2017. This meeting did not go ahead as the Complainant advised he was experiencing difficulty in securing a union representative.
On 28th July 2017 the Complainant advised the Respondent that as a complaint had been referred by him to the WRC, all communication between the Respondent and the Complainant should be suspended until the WRC heard the complaint. On 28th July 2017 the Respondent advised communication would not be suspended and it encouraged the Complainant to participate in the return to work process. On 22nd August 2017 the PIC attempted to make contact with the Complainant and left a voice messages seeking a meeting. The Complainant advised that he wished all communication to cease pending the outcome of the WRC process.
During September 2017 various exchanges of correspondence occurred between the parties primarily relating to the Complainant’s sick leave and associated pay matters. The Complainant subsequently submitted a medical certificate to cover his absence from 4th September 2017. He had remained absent from work since 10th July 2017 and had not provide any medical certification over tht period of time.
The Complainant was invited to attend an occupational health appointment for 21st September 2017 and he advised he was unable to attend on the advice of his General Practitioner. An appointment with Occupational Health was rescheduled for 17th October 2017 but the Complainant did not attend. On 6th November 2017 the Respondent again wrote to the Complainant advising that his non-engagement in the return to work process was a very serious matter which may cause his employment to be at risk. The Complainant was requested to engage with the return to work process and was again asked to attend an occupational health appointment on 28th November 2017, but the Complainant did not attend. On 6th December the Respondent wrote to the Complainant advising him that his employment was seriously at risk because of his refusal to engage with his employer.
With regard to the safeguarding concerns it received on 23rd February 2017, the Respondent advised it had reviewed the concerns and dealt with them as appropriate. As the Complainant was not satisfied with the outcome of how the Respondent initially handled the complaint, it offered to meet with the Complainant at the time. The Respondent also advised on foot of unsolicited information, HIQA carried out an unannounced inspection of the Designated Centre on 30th March 2017 with the overall findings of the inspection being positive.
As the Complainant been on sick leave since the 24th February 2017, despite attempts by the Respondent to meet with the Complainant, the Respondent advised that the Complainant had not positively engaged with the Respondent in its attempts to address the safeguarding concerns. It submitted that the Complainant was advised of the grievance procedure and the dignity at work policy.
The Respondent advised that the Complainant had failed to follow its policy on Whistleblowing/Protected Disclosures, and where a copy of the policy was provided to the Complainant on 14th March 2017. The Respondent advised the policy states that once a concern has been raised an employee must be available to discuss the matter furtherand/or be part of an investigation/consultation process if required. The Respondent added that as the Complainant failed to cooperate with its attempts to resolve the issue. It also submitted that the Complainant did not return to work despite being deemed fit for work by the Occupational Health Physician.
In response to the relocation of the Complainant, the Respondent maintained it regularly changes work locations of its employees to address service provision requirements and the ever-changing needs of the residents. It maintained that the Complainant was advised of this at the meeting on 23rd June 2017 and no issue was raised at that time by the Complainant or in a subsequent email from the Complainant stating his unwillingness to move. The Respondent advised that the Complainant has subsequently interpreted this move as penalisation.
The Respondent argued that the Complainant has not been penalised for raising a safeguarding concern, and in support of its position the Respondent provided information regarding the movement of staff. It submitted that it operated 40 Designated Centres and there is a custom and practice which is contained in the Complainant’s contract employment regarding such moves. It advised a number of the Complainant’s colleagues had been relocated before and since the Complainant raised his concerns, and he was being treated in the same fashion as other colleagues. The Respondent submitted its rationale for the moves and provided statistics regarding the care needs of its residents and the balance required across the different grades of staff and occupations to provide the appropriate level of care.
With regard to meeting its obligations for dealing with disclosures, the Respondent advised that under section 103 (55H) of the Health Act 2007, the Respondent has an approved policy that was shared with all staff including the Complainant. A Designated Officer has been appointed as a point of contact, and the Designated Officer responded to the concerns raised by the Complainant. It advised that in accordance with its Code of Practice on Protected Disclosures and its Whistleblowing Policy that in general complaints should be dealt with at the lowest level possible in the workplace. It advised that this is how it handled the concerns from the Complainant, but that the Complainant failed to co-operate with the Respondent to resolve his concerns despite many efforts made by the Respondent in seeking his co-operation.
In response to the complaint of penalisation, the Respondent stated that penalisation has a very clear definition within the meaning of the Act and advised that the Act states penalisation includes any act or omission by an employer or person acting on behalf of an employer that affects the employee to his or her detriment in respect to any term or condition of his or her employment and which is consequent upon a protected disclosure by the employee. The Respondent advised under Sect 55Q(2) penalisation includes (a) suspension, layoff dismissal, or the threat of suspension, layoff dismissal; (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of the place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand another penalty (including a financial penalty), (e) coercion, intimidation or harassment, (f) injury, damage or loss and (g) threats of reprisal. The Respondent further advised that Section 55Q(3) defines that a change of location of the place of work, reduction in wages or change in working hours should not be construed in a manner which prevents an employer from ensuring that the business of the body concerned is carried on in an efficient and effective manner.
The Respondent advised that the protected disclosure being relied upon by the Complainant took place on the 23rd February 2017 and where the Complainant went out sick on 24th February 2017 and has not returned to work. Whilst acknowledging the Complainant did raise a safeguarding concern, the Respondent argued the Complainant has not demonstrated that he has suffered a detriment as a consequence of raising his concern, or that there is a casual link between his raising of his disclosure and any detrimental treatment experienced by the Complainant. Notwithstanding the Respondent believes there were no detrimental acts against the complaint, and on that basis it argued that the complaint of penalisation must fail.
The Respondent further maintained that the vast bulk of issues raised in the Complainant’s complaint to the WRC predate his disclosure on 23rd February 2017 and as such cannot be held to constitute penalisation. The Respondent maintained that no detriment has been caused to the Complainant post February 2017 and submitted that the Complainant was treated as any other employee would have been in the circumstances. It maintained that it contacts and communications with the Complainant to discuss his concerns and dissatisfaction in how his concern was initially handled were prudent acts and were made in an attempt to resolve the issues of concern. The Respondent asserted that it would have treated any employees similarly by encouraging them to raise a grievance to address their concerns.
It also maintained that as the Complainant was on sick leave it was reasonable in requesting his attendance at Occupational Health. In this regard the Complainant was treated in a similar way as any other employee who was absent on long-term sick leave would be managed. It also maintained that it was correct in advising the Complainant of the potential for disciplinary action if his continued absence remained, and for his lack of willingness to cooperate with the Respondent’s attempts to progress his concerns. In this regard the Respondent submitted that the Complainant was treated in no way differently to other staff, and it further submitted that it provided more forbearance towards the Complainant with regard to his unauthorised absence, where it showed great patience in rescheduling meetings, rescheduling occupational health appointments, and keeping the Complainant’s position open.
In a legal argument the Respondent stated it relies upon the Labour Court’s decision in 2016 in Aidan & Henrietta McGrath Partnership V Monaghan PDD162, which followed the “but for” test laid out in O’Neill versus Toni and Guy BlackRock Ltd (2010) E.L.R. 21 in relation to penalisation under the 2005 act, as follows: “the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one casual factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed to protecting act he or she would not have suffered the detriment. This involves a consideration of the motive for reasons which influence the decision maker in opposing the impugned the detriment.”
In moving the Complainant to a different location, and in managing the process of seeking a return to work of the Complainant, the Respondent maintained that the Complainant was treated in a similar fashion to other employees. It outlined that three staff had been moved in the 12 months before the complaint was made, and where a decision to move employees was as a result of an investigation into another employee raising a safeguarding issue. It maintained that moving the Complainant was due to staffing needs in another location combined with increased medical needs of the people living in the Designated Centre where the Complainant had been employed.
In summary the Correspondent refuted the allegation of penalisation and maintained it attempted to deal with the Complainant’s safeguarding concerns, but it was the Complainant that did not engage in that process. The move of the Complainant was not related to his safeguarding concern and would have occurred in any event due to operational circumstances. The Respondent also advised it was obliged to manage the Complainant’s unauthorised absence, and once the Complainant had exceeded his sick leave to invoke the sick pay procedures. It maintained the Complainant was treated similarly to any other employee in that regard, and the reduction on pay was not as a consequence of the Complainant raising a safeguarding concern.
Findings and Conclusions:
Having reviewed the presentations and evidence provided I am satisfied that the Complainant had a genuine concern with regard to the care of the patient, and that he raised his concerns by way of email to the Director of Nursing on 23rd February 2017. This concern was passed to the Designated Officer who responded to same.
I am satisfied that the raising of such concerns provided the Complainant with protection in accordance with section 103(55C) of the Health Act 2007, in that he was an employee of a Designated Centre and made, in good faith, a disclosure that he believed was reasonable grounds that the disclosure would show the actions of persons employed by or acting on behalf of the Respondent was posing, or was likely to pose, a risk to the health or welfare of a resident of one of its centres. As such the Complainant was therefore protected for penalisation for having made a protected disclosure.
In accordance with section 104 (55M (1)) of the Health Act 2007 an employer shall not penalise an employee for making a protected disclosure, and where in proceedings before the WRC in relation to complaint of the contravention, it should be presumed, unless the contrary is proved, that the disclosure was a protected disclosure.
Having reviewed the evidence, the Complainant appears to have raised concerns relating to issues both before the protected disclosure was made on 23rd February 2017, and also in relation to the alleged actions of the Respondent towards the Complainant since the disclosure was made. However, it is clear in his submission to the WRC that the Complainant is seeking protection with regard to the complaint he raised the 23rd February 2017. Having reviewed his complaint it is not entirely evident that the complaint was raised as a protected disclosure at that time, however by way of an email to the HR Officer on 14th March 2017 it is clear that the Complainant asserts that his complaint of 23rd February 2017 amounted to a protected disclosure and where he was seeking the relevant protection at that time, and where he asked for the protected disclosure policy.
In accordance with the Respondents protected disclosure policy which it is required to have under section 103(55H) of the Health Act 2007, the Respondent advised that it’s the procedures require employees to report concerns to the line manager or to another manager within the workplace. The policy also encourages employees to report concerns to senior management, and if they do not wish to raise concerns directly with management they may do so by contacting an authorised person to deal with the protected disclosure. It further states that once a concern has been raised the employee must be available to discuss the matter further and/or be part of an investigation/consultation process if required. The Policy states that if an employee believes they have been subject to penalisation as result of making a disclosure under the procedure they should notify a manager/senior manager or an authorised person immediately. It further advised in certain circumstances where an employee wants to make a disclosure externally, the Protected Disclosures Act 2014 divides for a number of avenues in this regard.
As the Complainant raised his disclosure by email the Director of Nursing and Care, who is a manager, and the concern was subsequently passed to a Designated Officer without delay, I am satisfied that the Respondent adhered to its own procedures correctly.
I am satisfied that based on the evidence provided that the Designated Officer responded and where his prompt response is acknowledged by the Complainant at the time. However, it is evident that the Complainant was unhappy with the response provided and was seeking further action to be taken by the Respondent with regard to the safeguarding concerns that were raised. Based on the evidence the Respondent indicated they needed clarity from the Complaint with regard to the safeguarding issues. In light of the content of the Complainant’s email to the Director of Nursing, the Respondent viewed the concerns raised by the Complainant to be more questions rather than making a clear complaint. Notwithstanding I am satisfied that the correspondence that progressed between the parties would have indicated concerns that the Complainant had regard the treatment of a resident, and where the Respondent was reasonable in seeking further clarifications from the Complainant.
I am also satisfied that the Respondent sought to meet with the Complainant to discuss his concerns, so the matter could be progressed. However, as the Complainant was on sick leave after submitting his concerns he was not in a position to meet with the Respondent at that time. It is clear the Complainant did not engage from that point in co-operating with the Respondent to investigate/consult on the concerns raised. This is contrary to the Complainant’s obligations under the Whistleblowing/Protected Disclosure Policy.
I am satisfied the evidence adduced supports that the Complainant departed on sick leave from 24th February 2017 and had not returned to work by the time of the hearings within. The evidence supports that the Complainant did not adhere to the sick leave procedures and was on unauthorised absence from circa 10th July 2017 until 4th September 2017. In addressing the Complainant’s absence, the Respondent sought an independent medical opinion on his condition and in light of the Complainant’s condition it was entitled to seek an independent view on his fitness to return to work. On that basis I do not find that the Respondent prevented the Complainant from returning to work as alleged. The Complainant had presented with stress related matters in addition to experiencing a physical illness which eh had advised the Respondent about on his appointment. It is evident delays were experienced in arranging a meeting to discuss the Complainant’s return to work, but such delays were not untypical or punitive action against the Complainant. When he did attend a return to work meeting on 23rd June 2017 he asked for annual leave which was granted to him. The evidence also supports that at this meeting the Complainant was not in a position to discuss his concerns regarding his protected disclosure. Notwithstanding a return to work arrangement was put in place and where it was decided that the Complainant will be relocated to a different Designated Centre after 10th July 2017 once his leave was finished. The Complainant has maintained this decision amounted to penalisation. This matter is considered further below.
The evidence further supports that the Complainant did not return to work following his annual leave and he remained absence without approval until 4th September 2017. The Complainant remained out of work from that point, and the Respondent continued to be proactive in seeking a return to work date from the Complainant. In this regard , on 10th October 2017 the Complainant was advised that should he continue not to participate in a return to work process the Respondent would have no option but to review his employment as the Complainant was not meeting his contractual obligations. The Respondent stated that it was hoping to avoid such a review at that point, and where it advised the Complainant it was hoped he would engage in the process to facilitate his return to work. Again, the Complainant was advised that the Designated Officer and the HR Officer were available to meet with him to discuss any concerns he had. However, by 6th December 2017 the Complainant had still not attended an occupational health assessment despite been advised on 6th November 2017 that his ongoing failure to participate in the return to work process was being deemed as very serious and placed his continued employment at risk. The evidence supports that up to and including 6th December 2017 the Respondent had been asking the complaints to attend for and occupational health assessment and despite rescheduling such appointment on three occasions the Complainant had not attended.
I find that the correspondence from the Respondent to the Complainant over this time was fair, reasonable, and measured; and where the Respondent acted reasonably in seeking a timely return of the Complainant to work. In particular the evidence supports that the Respondent demonstrated patience by not escalating the disciplinary procedure throughout this period of time. As such the Respondent’s dealing of this matter cannot be upheld as an act of penalisation. The Respondent was entitled to manage the Complainant’s absence, and it did so in a similar manner it would deal with any other employee in similar circumstances. I find the Respondent facilitated the Complainant’s absence and did not sanction the Complainant for periods of unauthorised absence over this period, and that the Respondent appeared extremely tolerant in seeking the Complainant’s co-operation with offering numerous visits to its occupational health assessment, and in its attempts to have the Complainant return to work.
With regard to the Respondent’s invoking the sick pay scheme, I’m also satisfied that as a consequence of the Complainant being on extended sick leave that the sick pay scheme applied, and that the Complainant’s ongoing absence would affect his rate of pay. Accordingly, I do not find the reduction in pay was as a consequence of the Complainant raising a safeguarding issue, but it related to his long term absence. Under such circumstances the Respondent would have applied the sick pay scheme to any employee. Accordingly, the Respondent was not targeted or discriminated against. However, it is noted that no prior notification was provided to the Complainant that his ongoing absence would affect his pay. Although it is evident from his contract of employment that the sick pay scheme and regulation would apply due to his continued absence, in light of the medical information and possible side-effects of his medication which appears to have been known to the Respondent I do not find it reasonable that the Respondent did not in advance of its decision alert the Complainant to the fact that his pay was to be affected due to his long-term sick leave.
It is also acknowledged that as a consequence of his reduction in pay due to the long-term sick leave the Complainant encountered financial challenges which clearly created an added burden for him. A prudent employer, particularly in light of the fact that the Complainant had raised a protected disclosure, would have acted more transparently with regards introducing the sick pay scheme. However, when taking all of the circumstance into account I do not find the application of the sick pay scheme and regulations which caused a reduction on the Complainant’s pay, could reasonably be regarded as an act of penalisation. I therefore do not uphold this element of the Complainant’s claim.
In relation to the proposed move of the Complainant to work in a different centre, I am satisfied having reviewed the evidence that the decision to relocate the Complainant was based on many factors. These factors included a previous investigation of concerns in the Complainant’s former designated centre, the changing circumstances regarding staffing issues, the needs of residents in that and other designated centres, and the need for the Respondent to realign the number of Social Care Workers and nursing staff across its Designated Centres. I’m satisfied that the Respondent has demonstrated the movement of staff to different designated centres is common practice and that many other Social Care Workers are moved, and that the movement of the Complainant was not targeted decision but was based on operational requirements. I’m satisfied that based on the evidence provided that this was an objective decision made by the Respondent and it was not a decision motivated to penalise the Complainant. In making its decision I am satisfied that the Respondent was exercising its right to ensure the business was carried out in an efficient and effective manner. I acknowledge the Complainant genuinely held the view that this move was as a consequence of raising his concerns, and the decision to move the Complainant appears to have contributed to his fitness to return to work.
In light of the Respondent’s safeguarding procedures and whistleblowing/protected disclosure policy, a Complainant is obliged to co-operate with an investigation/consultation of their concerns. I do not view it as my role as an Adjudication Officer of the WRC to review and investigate substantive issues relating to a safeguarding concern. That responsibility lies with the Respondent and/or an appropriate body identified in its policies and associated procedures. It is incumbent on a discloser to participate in such procedures and not hide behind a complaint to the WRC as a means of not co-operating with their employer in its obligations to progress a safeguarding concern. I find the Complainant’s approach by not co-operating with the Respondent’s attempts to progress his safeguarding concern to have been unhelpful, and questionable in light of the emphasis being placed by the Complainant on what he presented as his genuine safeguarding concerns. In such circumstances the care of a resident that may be at risk should be a priority of all the parties.
Section55M(6) requires that I declare the complaint was our, as the case may be, was not well founded.
Whilst I have found the Complainant had made a complaint which would afford him protection under the protected disclosure legislation, I did not find the actions or omissions of the employer amount to an act of penalisation as defined in the legislation. I therefore do not find the complaints of penalisation are well founded.
I acknowledge the matter was particularly challenging for the Complainant who presented as having genuine concerns. I also knowledge the efforts made by the Respondent to progress these concerns and where the Respondent applied a measured approach regarding the return to work of the Complainant and tolerated and extended absence without invoking its disciplinary procedures.
Whilst the Respondent’s handling of the Complainant’s sick pay was not helpful, I decide the act or omissions made in invoking its sick pay scheme do not amount to an act of penalisation or discrimination. Notwithstanding the Respondent should in future ensure it proactively engages with staff when implementing its sick pay scheme, and where no pay deductions should be made before it clearly advises an employee of its intentions.
Dated: October 30th 2018
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Protected Disclosure; Health Act,2005; Penalisation;